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Brussels court lobs a bomb into football as big as Bosman. And it affects everyone.

By Tony Attwood

You may have thought that the days of EU rulings affecting UK football are coming to an end.  Indeed we’ve recently been discussing exactly this: how the FA and the UK government might collude after the EU closes the door on the UK to restrict the right of non-UK citizens to play football in England.

But some matters are bigger than that – particularly when they affect Uefa and Fifa.  And issue, one seemingly as large as Bosman has just got to the the Brussels Court of Appeal.  Again you might say “what has that got to do with Arsenal and English football?” and the answer is, pretty much everything.

For the ruling is that Fifa’s regulation that the obligatory acceptance, recognition and use of the Court of Arbitration for Sport in footballing disputes, is illegal.

The case in question concerned the third party ownership of players, but te finding affects all issues that go to the CAS.  The ruling does not stop both sides in a case agreeing to go to and accept the ruling of the CAS, but rather states that “enforced arbitration by CAS” is illegal.

That means that from this moment on, if Fifa or Uefa tells one side in a football dispute in Belgium that if it disagrees with a finding of a football body it ultimately must go to the CAS, it has acted illegally in Belgian law, and the aggrieved party can instead go to a domestic court and sue.

But it is not just Belgian law that is affected, for the argument is that forcing a party to go to CAS violates article 6 of the European Convention of Human Rights and article 47 of the European Charter of Fundamental Rights.

Now the UK is signatories to both of these, but even without that the fact is that it would be most unlikely that football could operate by claiming the rest of the world has to go to CAS while disputes in Belgium have to go to their own courts.

In fact as a result any club or country can take legal action against any other, or against Fifa or Uefa.  Now I have already heard one person say this will lead to “chaos” – the usual response to any change – but in fact it leads to the real world – the world we all live in.

As so often in cases like this, the dispute arose over a particular point: in this case an argument over third party ownership of a player by an investment fund.   If I were a writer of much greater merit than I actually am, and had a bright future before me potentially earning millions and millions, but was, at this time a little short of  the readies, I could sell a percentage of my future earnings to a fund, which would help me over my current difficulties but own my future.  All fantasy of course in my case, but not in the case of players.

But in this football case the argument grew and grew.  And this is where it gets fun, because the plaintiff expanded the argument not just to the local FA, but also Uefa’s Financial Fair Play rules, the legal base on which all sporting organisations hand out punishments and the whole essence of the highly secretive CAS itself.

There will of course be many more arguments, but for the moment the insistence that disputes go to CAS is unlawful in Belgium and by implication the EU.  But that is only the start because the plaintiff also took up an issue that has worried Untold in its more arcane moments – the question of the impartiality and independence of CAS.

Because CAS is in Switzerland and therefore outside the EU it does not apply EU law.  And as I’ve pointed out in the past, it can be as secret as it likes (as indeed it often likes) in making and discussing its decisions.  And of course there is no appeal.

But this new court ruling means that old cases could now be re-opened on the grounds that under EU law CAS is an illegal entity that has no right to hand down binding rulings.

Of course Uefa has been protesting that CAS does a jolly good job.  Indeed rather amusingly Fifa demanded the current case be heard in Zurich, on grounds that it, Fifa, and the CAS are based in Switzerland.  But the Brussels court said it had jurisdiction which again questions the whole basis of the notion that football (and other sporting bodies) can look after their own affairs, and that disputes must be heard by them, and not by the normal court process.

However lest it be thought this was a little local matter in this case the Brussels Court cited a ruling of  the Spanish Supreme Court which had earlier concluded that a cyclist did not have to take an appeal in a drugs case to the CAS.   That court found that enforced arbitration through a particular means was unconstitutional in Spain.  The walls, it seems, have been shaking for some time.  (The UK famously has no constitution, and thus such challenges are never open to us, but it is good that someone else gets up and does it sometimes).

In the current case, some of the team who worked on the Bosman case and other cases involving sporting bodies that claim to be above the law.  And their work means that one of the great issues that has bedeviled football in some parts of the world can at last be tackled: the question of ownership of clubs.  We know who owns clubs in England, but this is not always the case, and there are reports in Eastern Europe and Central America that clubs (especially lower level clubs) can be owned by criminal organisations such as drugs cartels, people traffickers and indeed investment funds.

Indeed there has been the case of Club Deportivo Maldonada – a club said in some quarters to have been set up by Gareth Bale’s agent, which is said to buy players, and sell on 50% of their rights, keeping 50% for itself.  However it has no team and never plays any games.

Also affected will be the tatters of the Financial Fair Play rules that remain; now if anyone does not like them, following this ruling concerning CAS, they (the club or the player) can challenge their legality in the local court.

In fact the whole Fifa model of total power and total control has just been pushed over a cliff.

It’s a bit funny that the British media isn’t reporting this.  But then they didn’t pick up on Bosman or FFP until rather late in the day.

6 comments to Brussels court lobs a bomb into football as big as Bosman. And it affects everyone.

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